“Will the Court Let Me Sell the Marital Home Before the Divorce is Final?”

If financial problems did not occur before divorce, they frequently happen during the divorce process. The expenses of one household can double when a couple no longer lives together. Trying to meet mortgage payments while one party is also paying rent, along with all other living expenses, may simply be too much to ask. It’s not uncommon for a divorced couple to get behind in mortgage payments and face a possible foreclosure.

Can one divorcing spouse, through a court order, compel the sale of a property to avoid a foreclosure or additional financial losses?

The general rule concerning a proposed order by a judge to sell a marital home before the divorce, against the wishes of the other spouse, came up in a court case from 1978, Grange v. Grange, 160 N.J. Super. 153 (App. Div. 1978). The couple’s marital residence, a condo in New Jersey, was unoccupied and the husband moved to Florida and the wife moved to Michigan.

Irwin Grange asked the trial court to allow the sale of the condo at a loss because he couldn’t afford the condo payments, spousal support, and to pay his lawyer. The wife objected, stating the proposed sale price her husband had arranged was too low. The trial judge agreed with the sale and Muriel Grange appealed.

The Superior Court of New Jersey, Appellate Division, reversed, holding that the court generally won’t approve a request for sale while the divorce is still pending, unless the home is in foreclosure or will soon go into foreclosure, or the family does not have the financial resources to meet the monthly mortgage payments. In those situations, a judge may grant a motion to compel the sale of the marital home while the divorce is still pending.

The issue came up again at the Supreme Court of New Jersey in 2005 in the case of Randazzo v. Randazzo, 184 N.J. 101 (App. Div. 2005). The couple was married for 43 years when they decided to divorce. They had successful family businesses and had multiple properties when they filed for divorce.

The property at issue was in Florida. The wife had arranged for a sale and the husband stated he signed a sales agreement but withheld it until the distribution of marital assets. The trial court ordered a sale of the property. The Appellate Division and Supreme Court agreed that was proper and greatly expanded the law as stated in Grange.

The Court stated that “a trial court has the equitable power to order…a sale (of the marital residence) and, if the circumstances warrant, to order the proceeds be distributed to serve the best interests of the parties…” The Court further held “the trial court may exercise its discretion to order the sale of marital assets and the utilization of the proceeds in a manner as ‘the case shall render fit, reasonable and just…’” The court also wrote,

We take this opportunity to express our disagreement with the Grange decision. Despite the apparent equities in favor of the sale of marital property prior to the divorce, the Grange panel reversed the trial court’s judgment authorizing the sale of the marital condominium. We disapprove of Grange to the extent it stands for the proposition that absent consent, the trial court lacks authority to order the sale of a marital asset prior to the judgment of divorce.

If the facts are in your favor and you and your spouse can’t agree on selling a property during the divorce process, you may be able to have the judge assigned force the issue and approve the sale.

If you are considering a divorce and have concerns about what your property ownership rights might be, call the Central Jersey law offices of Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online, for a near-term reduced fee initial consultation. We can discuss your situation, explain the applicable laws, and advise you about your best options to protect your legal rights and interests. Call now. You will be glad you did.

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